The declaration of Covid-19 as a global pandemic saw in its wake the disruption of the social and economic activities world over.
The capacities of many healthcare systems, especially in developing countries, were stretched by the pandemic to the tipping point.
Luckily, upon considerable scientific efforts, some effective vaccines against the virus were produced. Whereas this restored hope, many countries, especially from the developing world, faced a herculean task in accessing the vaccines for its people, thanks to, amongst other contributory factors, the restrictive Intellectual Property regime.
Intellectual property law restrictions arise because vaccine patents, which are a form of intellectual property rights, prevent others from entering the market in any form including production, supply and more importantly pricing of the vaccines.
Ordinarily, the owner of a patent to a new medical product is granted exclusive proprietary rights for some period of time, mostly 20 years. The proponents of exclusivity argue that, the same allows innovators time-limited rights so as to recoup benefits of their intellectual input in the nature of numerous research and development towards an innovation.
With the pandemic ravaging the world, the urgency by developed countries in securing the vaccine supplies for their citizens exposed the soft underbelly of the existent global inequalities.
A world was divided in two fronts: Those with vaccine and those without. It is on record that the developed countries had a stock surplus of the vaccines that could be shared and still enough left over to vaccinate 80 per cent of their population older than 12 years!
The self-defeating situation was aptly described by World Health Organization Director General Dr Tedros Ghebreyesus as not only a moral failure, but an economic and human rights catastrophe.
Clearly, the pandemic revived the old debate on the delicate balance between public health and intellectual property rights. The HIV-Aids crisis of the 1990s remain vivid. People dying in developing countries because of inaccessibility of the patented life-saving anti-retroviral drugs.
It was not until the Indian companies started manufacturing generics, which saw the dramatic fall in price resulting in remarkable improvement in access to ARVs. Notably, India could do so because at that time, it had not adopted patents for medicines.
Although the right to health has been inscribed in a number of global treaties, actualisation of the aspirations remains distant as we witness from the pandemic many countries especially the developing nations, unable to fully realizing the right to health for their needy citizenry.
The opposition by developed countries on the request by developing countries led by South Africa and India to the Trade Related Aspects of Intellectual Property Council for a temporary waiver, meant to eliminate patent and other intellectual property barriers for the development, production and supply of all Covid-19 medical products, underscores the underlying inequalities.
Whereas it is mandatory for all World Trade Organization member countries to recognise product patents, there are exemptions outlined in TRIPS depending on the circumstances. Examples of the TRIPS flexibilities available include compulsory licensing, voluntary licensing, data protection, parallel imports amongst others.
The voluntary licensing arrangement between AstraZeneca and Serum institute of India, is a good example and a success template for many a developing country on achieving access to vaccines.
As the world continues fighting the pandemic whose threat is now compounded by the WHO latest warning of a heavily mutated Omicron variant, vaccination of the population is no doubt paramount towards containment of the virus.
While the short-term solution to ensuring more equitable vaccines access is reliant on distribution of the global stockpile to places in need, the long-term solution should focus on local capacity strengthening.
The Kenyan government has taken cue on this self-reliance lesson. During the State of the Nation address, President Uhuru Kenyatta outlined some ongoing efforts to establish a venture that would locally produce anti Covid-19 vaccines targeted to commence operations by Easter 2022.
Developing countries must thus rise to the occasion and confront barriers such as lack of physical infrastructure, technical expertise and supply chain capability. Maximum utilisation of the obtaining TRIPS flexibilities and further attempt by developing countries to liberalize Intellectual property rules through IP waivers, would make these underlying technologies available for use at a global scale.
The WHO global accord on pandemic prevention mooted by the World Health Assembly is a welcome effort aimed at protecting the world from future infections.
Kisorio is the head of legal services at the Pharmacy and Poisons Board
